New York State Court of Claims

New York State Court of Claims

HORST v. THE STATE OF NEW YORK, #2004-016-082, Claim No. 104357


Claimant rollerblader, State of New York and vehicle driver shared responsibility when driver ran stop sign at State Construction site where pedestrians had to cross service road without proper warning.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
The Jacob D. Fuchsberg Law FirmBy: Leslie Kelmachter, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney General
By: Morrison Mahoney LLPBy: Brian P. Heermance, Esq., and Justin M. Fabella, Esq.
Third-party defendant's attorney:

Signature date:
January 4, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the decision following the trial of the claim of Heidi Horst that the State of New York was negligent when she was struck by a car on September 9, 1999 while rollerblading near the Chelsea Piers Sports and Entertainment Complex on the west side of Manhattan. The Chelsea Piers facility is located between the Hudson River and the West Side Highway and is built across the piers, from about halfway between Piers 58 and 59 north to Pier 62.[1] The cross streets that correspond to these piers are West 17th through West 22nd Streets.
At the time, the West Side Highway was undergoing major reconstruction from
Battery Park to West 59th Street. The project was divided into segments; Chelsea Piers was part of Segment 5, which ran from Horatio Street north to West 26th Street (cl exh 3, p.1).
Construction on Segment 5, or at least in the vicinity of Chelsea Piers, began in May of 1998 and was completed in September, 2000.
In the beginning of 1999, the area of Ms. Horst's accident was configured from the West Side Highway west to the Hudson River as follows:
- - Three lanes of traffic in each direction on the West Side Highway, separated by a low, concrete barrier, known as a Jersey Barrier.
- - A bus lane alongside the southbound Highway traffic between 16th and 17th Streets (see cl exh 2F).
- - A one-car-wide, southbound service lane exiting Chelsea Piers (see cl exh 7, sheet GP-6), separated from the bus lane by a Jersey Barrier that was about three feet high (cl exh 2A[2]), and feeding into the West Side Highway (cl exh 1J).
- - A pathway (the "walkway") for non-vehicular traffic, including pedestrians, bicyclists and rollerbladers, which was adjacent to the Hudson River, and separated from the service lane east of it by a Jersey Barrier and fencing about seven feet high. The west side of the walkway, closest to the Hudson, was also bounded by a concrete barrier topped by fencing. (Cl exhs 2A & 2E).
- - Openings to enable bus passengers to go to and from the walkway and a New York Waterway bus: one in the Jersey Barrier between the Highway and the service lane; the other in the barrier/fencing between the service road and the walkway. The openings were at least 100 feet down from the southern end of the Chelsea Piers building (cl exh 2A). [3]
- - Parallel white lines across the service lane, which ran between the two openings (although the testimony on when the lines were painted was vague and inconclusive). Cl exh 1P.
Two kinds of problems arose from this configuration. Some drivers exiting from the Chelsea Piers, and believing they spied a shortcut, tried to cross over through the opening on their right into the walkway. The walkway was not meant for cars, and they were unable to exit; vehicles tried to back up, and the inevitable traffic jam ensued. More significantly, on February 12, 1999, a bicyclist who "peered out" from the walkway into the service lane was struck by a car (cl exh 9).

Within a week of such accident, a meeting was held with representatives of the State, one of the State's engineering consultants (CTE Engineers), the general contractor for Segment 5 (Felix Equities), and the management of Chelsea Piers (cl exhs 9 & 11).
The result of the meeting was twofold. A stop sign was installed on the service road to halt vehicles before the openings. In addition, bollards - - vertical metal poles - - were set in the ground to prevent cars from entering the walkway, but were sufficiently spaced so that pedestrians, bicyclists and rollerbladers could navigate the opening (cl exhs 1F & 2A). A member of the maintenance staff at Chelsea Piers performed the work on the stop sign and bollards.
At the time of her accident, Ms. Horst lived in the Lower East Side of Manhattan on Ludlow Steet, which runs south from Houston Street. Claimant testified that she regularly rollerbladed in
her neighborhood and elsewhere around town; sometimes she skated on playgrounds, and on occasion, would take the subway up to Central Park and rollerblade there. In the early afternoon of September 9, 1999, Horst left her apartment intending to "go on a leisurely ride rollerblading." It was a clear, warm day; she was wearing jeans, a T-shirt and a backpack containing a "water bottle, a Walkman, and maybe a wallet."
Horst went west on Houston Street, "on the sidewalk," presumably, rollerblading her way. When claimant went as far west as possible, she skated north on the walkway which runs alongside the Hudson River
. She testified that she had previously rollerbladed to this point where Houston Street meets the Hudson River, but had only gone south on the walkway from there. Horst recalled having been at Chelsea Piers once before, to watch a friend play soccer; she said she went by taxi that time, approaching the facility from the north, being dropped off at the north side of Chelsea Piers, and leaving from the same place.
Houston Street north to 16th Street is some distance, and it took claimant 15 to 20 minutes to pass the opening in the fence between her path and the service lane, which corresponds to the area between 16th and 17th Streets. Claimant did not go much past the opening; she was perhaps 75 feet from the large, blue building with red, stenciled-like letters on its south wall which read, "CHELSEA PIERS." In front of the building, an orange rectangular sign was affixed to a post on the left side of the walkway (cl exh 2B; def exh A). The top two-thirds of the sign, in black lettering, taking up three lines, read:

Just below the word "Closed" was an arrow pointing left, or west toward a boardwalk running in front of the Chelsea Piers building (cl exhs 1M & 2B). Below the arrow, but in much smaller lettering, no more than a third as high as the lettering above (def exh A), were the following three lines:
Please Follow Orange Signs
And Return to Bikeway/Walkway
At Pier 60[4]
Horst then turned around, she said, because from where she was, she could read, or see, only the large top three lines, namely "Bikeway/Walkway Temporarily Closed," and to claimant from that distance, the arrow appeared to be a straight line.
Horst did not notice or read the smaller print below, and thus concluded that the road was closed. "I skated back to the opening... I stopped where we see these poles as you referred to them as bollards. I looked left and right." She then skated into the service lane for cars exiting from Chelsea Piers "[b]ecause I believed that it was a continuation of the pedestrian pathway, [the] recreational pathway."
Horst described what happened next:
I skated towards the right-hand side of what I thought was the path and when I turned north to continue skating north I saw a car . . . My first instinct was to get out of the way, but I didn't have anywhere to go . . .
The lane was too narrow, so I had no time to move, go anywhere or no space . . . I was struck by the car. . . The car hit approximately the middle of my lower legs and I flew through the air and landed on my back side . . . I was north of the opening in the fence.

The vehicle that struck claimant, a red Buick
, was driven by Andy Mosquea, who was exiting Chelsea Piers where he worked as a lifeguard. At trial, Mr. Mosquea's testimony was received through portions of his depositions given on April 15, 2001 and August 26, 2004. Mosquea was driving with a friend, Jimmy LaFontaine. Both Mosquea and Horst testified that it all happened so quickly - - and inside the barriers - - that neither could avoid the impact.
Mosquea's testimony that there was no stop sign in place on September 9, 1999 was not credible. After initially stating that he drove the service road two or three times a week, Mosquea then said he drove it Monday through Friday
, but had never noticed the stop sign until he came back to the scene on his bicycle three days after the accident. The implausibility of Mosquea's testimony is highlighted when compared with the highly credible Michael Braito.
Mr. Braito, the senior vice-president of Chelsea Piers,[5]
had a forthcoming and relaxed demeanor. This was a witness very comfortable with what he had to say. Braito was on site daily, would walk the area, was very familiar with the effect construction had on Chelsea Piers and was involved when it was decided to install the stop sign. He would have noticed it if the sign were down, as would have William Prazenka and Angel Morales, both employed by CTE Engineers and both of whom walked the area regularly. Nor was it mentioned in Mr. Morales' memo of August 12, 1999, entitled "MPT [Maintenance and Protection of Traffic] Concerns," which included references to replacing or repairing signs at other specific locations (cl exh 14). Finally, no evidence was advanced that the sign had ever fallen or been knocked down.
To this trier of fact, on the day of the accident, the stop sign was in place on the service road. Such conclusion is unaffected by Ms. Horst's testimony that she did not see the stop sign:
"[w]hether it was there or not, . . . I do not know." Mr. Mosquea, who testified that he never had a chance to apply his brakes before he hit claimant, and thus never stopped or began stopping in response to the sign's direction, must therefore bear some responsibility for claimant's accident. Brown v State of New York, 268 AD2d 548, 702 NYS2d 617 (2000).
As a general proposition, the State and its political subdivisions possess a qualified immunity for highway design and planning: these
are matters entrusted to experts, who are not to be second-guessed by the trier of fact in a courtroom. With that said, immunity can be overcome by showing that a particular design was effected without adequate study, or lacked a reasonable basis. Weiss v Fote, 7 NY2d 579, 200 NYS2d 409 (1960); see also Affleck v Buckley, 96 NY2d 553, 732 NYS2d 625 (2001) and Friedman v State of New York, 67 NY2d 271, 502 NYS2d 669 (1986).
A formal study is not needed in every instance, but what is required is that a road design be the result of a deliberative decision-making process appropriate to the particular facts. See for example,
Ernest v Red Creek Central School District, 93 NY2d 664, 673, 695 NYS2d 531, 535, (1999), relating to a "sight distance" study to determine how close motorists had to be to a driveway to see exiting vehicles, which resulted in the reduction of the speed limit from 55 to 30 miles per hour.[6]
Claimant called to the stand Nicholas Bellizi, who holds degrees in civil and traffic engineering. Mr. Bellizi observed that in his experience, when a change in the field is made, it is recorded in the engineer's daily report. The examples he gave, changing the width of an opening or using Jersey Barriers in smaller size segments, are qualitatively different from the issue in this case. The area of the accident here was designated a public safety zone (cl exh 26, sheet 91), which as Bellizi explained meant that even though Segment 5 was one of ongoing construction, the public was permitted
access via "vehicular or pedestrian traffic." The action of creating access to a bus stop by cutting a pedestrian path across a vehicular traffic lane created a point of conflict between vehicles and pedestrians.
Such bus stop creation was done without study; no record of it as a revised page of the Segment 5 plans, nor as an entry in the engineer's daily log exists. Mr. Prazenka, who was employed by consulting engineer CTE as resident engineer for Segment 5 testified that
"I believe there was a sketch prepared . . . I recalled seeing a bus stop sketch." The sketch was never produced, and Mr. Prazenka had no recollection of what deliberations were made in connection with it.
As indicated, the stop sign and bollards were installed following a meeting; no minutes or notes on any discussion or engineering considerations were produced. The Manual of Uniform Traffic Control Devices (the "Manual") recommends that "records of traffic control decisions and the reasons for them be maintained." (17 NYCRR §200.2 (h)). A
February 23, 1999 letter to Chelsea Piers management, signed on behalf of the State's engineer in charge and Mr. Prazenka, states that at the meeting, it was decided to install a stop sign and bollards "in lieu [of] closing the West 16th Street exit" - - hardly a valid engineering ground (cl exh 11).
Whatever was done by way of study or evaluation was plainly inadequate. The conflict point between cars and people continued. It was alleviated or eliminated for cars with the stop sign. Bellizi contended, or at least suggested, that because of where the openings were situated, the stop sign should have been preceded by a warning to stop ahead. But nothing was done to signal pedestrians, cyclists or rollerbladers. Bellizi suggested signage directly warning pedestrians of vehicles or a
"one-way sign that could be posted on the median barrier between the access road and the West Side Highway southbound roadway, a post-mounted one-way arrow that would indicate to anybody coming up here in addition to the signage I just mentioned that this, in fact, is an access road." At trial, defendant's expert, Dr. Carl Berkowitz, who has degrees in civil and transportation engineering, maintained that there were, in place, several things that would have put a pedestrian on notice that this was a path for vehicles. These included the bollards which signal a "change of environment," the stop sign with its unique hexagonal shape (even if viewed from behind) and the white parallel lines leading to the bus stop. However, the pavement markings at that site were confusing; there was another white line of indeterminate length perpendicular to the parallel lines. Dr. Berkowitz also contended that the tire tracks in the service lane should have served as a warning that vehicles used it, but such was not persuasive. [7]
The result from the inadequate decision-making process in this case was especially inappropriate because its outcome was so unusual, if not unique.
Defendant could not point to anything in the Manual, any other regulation, statute or case law that deals with this sort of truncated crosswalk. Bellizi observed that there were no "crossings" like it in New York City, or at least Manhattan, giving the only two instances that seemed vaguely close, but in fact were quite different, because those mid-block crosswalks led across the street; they were true crosswalks. Here, the path between the two fence openings led to a bus stop. While Ms. Horst was not heading to or leaving a bus, the oddity of this configuration was shown by the fact that there was no place for passengers to wait for the bus. Do they stand in the walkway and then assume the bus will stop and let passengers off, so they can try to safely dash across the service road? The options for disembarking passengers were even worse because they would be let out right at the service road.
Once qualified immunity is overcome, ordinary negligence must be shown - - did defendant violate its duty and was such the proximate cause (
PJI 2:70) of Ms. Horst's accident? Clearly, defendant's inadequate design was a breach of its duty, which could have been satisfied with some inexpensive signs; the unsigned breach in the barriers between the vehicular lane and the walkway was a substantial factor in Horst's accident: in sum, the State of New York was negligent. As concluded above, so was the driver of the Buick; what then of the other companies on site and claimant herself?

Responsibility for this unique configuration has to reside with the State of New York and not its contractors or consulting engineers. The job of the construction contractors was to build according to the contract specifications and that of the inspectors (whether State employees or consultants acting with or in their stead) to ensure compliance with the specifications, including all safety provisions. While the need for the bus stop did not arise until the Chelsea Piers facility was up and running, making such a change in the original contract plans, including the subsequent stop sign and bollard installation, must be imputed to the State. As Prazenka testified, the State had the authority to change the Maintenance and Protection of Traffic Plan and could do so independently of its contractors and consultants.
Similarly, as to
any of the entities interested in having a bus stop convenient to Chelsea Piers - - whether Chelsea Piers, New York Waterways, or the local community board - - writing letters or attending meetings, without having any authority over the bus stop's location and access, will not implicate negligence.
In any event, Ms. Horst must bear some responsibility. The area was obviously a construction site, alongside a six-lane highway in New York City. Claimant was aware enough of the West Side Highway that she took Houston Street all the way over to the walkway because she testified she knew there was a light at Houston that would allow her to cross the Highway. When she looked into the service road, claimant testified that she saw no walkers, bicyclists, or rollerbladers. When asked what she thought the path was that went south of the opening next to where she had skated north, claimant responded, "I don't remember." Asked if she did not think it strange that the bikeway continued north to the orange sign when, by her lights, there was a continuation path to the right, north of the fence opening, she replied, " No . . . I don't remember whether I did or did not."
Horst's testimony on how far beyond the opening she skated is a little vague. Claimant is not sure if she made it past the puddle shown in the photograph that is claimant's exhibit 2D. But that puddle is right by the stop sign, or a few feet north of it.
I conclude that Ms. Horst knew or should have known of the stop sign. Analogously, recall that Mr. Bellizi indicated that a one-way sign on the service road visible to pedestrians at the crossing would have aided them in perceiving that vehicles were coming down the road.
While the seven months the stop sign was in place is not, in general, a lengthy period, this was an area with a significant amount of traffic, and no evidence was presented that any other non-vehicular user of the walkway mistook the service road for part of the walkway or had an accident like Ms. Horst's.[8]
For that matter, the February 12, 1999 accident of the cyclist peering into the service road, demonstrating that he or she apparently recognized it as such, is distinguishable in kind from claimant's accident.
I conclude from the foregoing that:
- - The driver ran the stop sign and should bear primary responsibility at 50%.
- - The State, with no deliberative planning, created a unique and unfamiliar conflict point for cars and non-vehicular traffic. For her part, Ms. Horst was not paying attention in an area where she should have been and undertook a course of action that we have no evidence anyone else had attempted. Accordingly, I find defendant and claimant each 25% liable.
Ms. Horst suffered a fracture of the left distal tibia, which is the larger of the two bones connecting the knee and ankle. The fracture was an open one, meaning that a piece of bone stuck through the skin. Taken by ambulance on September 9 to St. Vincent's Hospital, claimant remained there for 11 days.
Her leg was very painful. She also felt pain in her head and hands, and had a badly bruised back.
The initial medical procedure was what is known as a closed reduction; the bone was set and the entire leg placed in a cast for 24 hours. Horst remembered it as
"the most excruciating pain I've ever felt." Dr. Kenneth Egol, an orthopedic surgeon who treated claimant later and took the stand at trial, explained that a closed reduction is not easily accomplished, because, among other things, there tends to be a lot of muscle force pulling on the different fracture fragments. Horst's closed reduction did not take; the bone would not stay in place. The cast was sawed off, and she went through the same procedure again and the same excruciating pain. The second closed reduction was also unsuccessful and surgery became the only viable course.
An intramedullary nail fixation was performed on September 16, 1999 by Dr. Franco Cerabona.
An incision was made below the knee and the tissue was retracted to the bone. A hole was drilled in the tibia, and a wire inserted to determine the length of the nail or metal rod to follow. The canal was scraped out to be widened for the rod, 345 millimeters, or about a foot, in length, which was tapped down into the canal with a hammer. (See cl exh 17, the 9/16/99 Operative Report). The rod is, in essence, an internal split, anchored at either end with a locking bolt or screw; in claimant's case, three screws were used, two near the ankle.
Horst stayed in the hospital for four days after her surgery, confined to bed. Given pain medication in the hospital, claimant still had shooting pains in her leg. When released, she went home to her apartment, which was on the fourth floor of a building with an elevator.
In the first few days, she would only get out of bed to use the bathroom, but that proved difficult, and claimant had to resort to a bedpan. She could not leave her apartment for a month and her roommate assisted her with eating and bathing.
Physical therapy was prescribed, which she found painful; her leg was still swollen and stiff. No time frame for this treatment was presented.
After about five months, even though Horst was in considerable pain and trying not to put pressure on the leg or bend her knee, she felt that she had to go back to work: "I had to support myself and earn an income." In this period, claimant had gone from using a walker and crutches for a month each, and then a cane which she relied upon for about four or five months.
Ms. Horst was far from the end of her surgical road; she faced three more surgeries. On February 8, 2000, Dr. Cerabona performed another surgery because the fracture was not healing properly. One end of the locking bolts was removed in a process called dynamization, which is intended to affect the way a patient bears down on her weight in order to stimulate the healing process. When two of the locking screws were removed, it was found that one of them had broken.
This surgery did not result in the bone healing, and another operation by Dr. Cerabona
was required. Claimant described the pain between the second and third surgeries as present every day. The third surgery was done eight months later on October 10, 2000. The existing rod was removed and the bone was scraped again, which was intended to increase the blood flow to the area, promoting healing. A slightly larger rod was inserted; such a rod would use larger locking screws, which are less prone to break. After the surgery, Horst stated that the pain in her leg was "less severe" than before.
Horst still had some pain near the top locking bolts, and she saw Dr. Egol in 2002. As part of his examination, Dr. Egol took a CT scan that showed the fracture had healed, but a large bony overgrowth or exuberant callus had developed on her leg (cl exhs 16A and 16B). Dr. Egol operated on May 22, 2002, and as a possible source of the pain, the "proximal" locking bolt was removed. The bony overgrowth was literally ground or planed down. (Cl exh 19).
At trial, Horst rolled up her pant leg and at least three scars were evident, as was discoloration on the leg, and what can fairly be termed a gouge in the skin. Moreover, her left leg, or the lower portion thereof, was not straight, and she had the metal rod inside her leg. Horst said she had limped
until the third surgery in 2000. When asked at trial if she still limped, claimant credibly responded, ". . . my gait does not feel the same, but I don't believe I have a visible limp," adding that she favored her right leg.
Dr. Egol testified that, assuming she had pain as of the time of the trial, five years after the injury, such pain will be permanent. Defendant's expert orthopedic surgeon, Dr. Salvatore Lenzo, disagreed that pain in such instance would necessarily be permanent, but conceded that pain can impair function. Dr. Lenzo saw claimant in April of 2002 and May of 2004, and he testified that on neither occasion did Horst complain of pain or discomfort, but had tenderness near the knee in 2002. In 2002, Lenzo did three range of motion tests, and found the knee to be normal, but two other range of motion tests at the ankle/foot area were only nearly normal (Dorset flexion and plantar flexion). Dr. Lenzo testified that claimant, when he saw her in mid-2004, could physically engage in a whole range of demanding athletic activities.

On the stand, Horst said that, "
I'm in pain when I do certain activities. I'm in pain when I walk often. Standing in one place is the worst for stiffness and pain." Claimant has undergone no treatment for her leg since 2002; she will occasionally take over-the-counter Advil, which does relieve the pain. Both Drs. Egol and Lenzo acknowledged that pain is subjective. To this trier of fact, in evaluating the testimony of the two orthopedic surgeons as well as that of claimant, I conclude, that depending upon the activity, Ms. Horst will in the future be subject to pain.
At the time of her accident, Ms. Horst was 33 years old. She had set her sights on becoming an actress. Claimant was working principally as a waitress, but took some temporary work as a secretary and a few catering jobs, all of which allowed scheduling flexibility so that she could follow her dream. Horst took acting classes and voice lessons, went on auditions and took the occasional acting job. She had earned no more than $5,000 in total though September of 1999 from acting. Nonetheless, claimant had
an active engagement in the arts, not only in seeking to build a career, but through a network of friends who were in the arts, attended one another's plays and went to museums, galleries, dance performances and films together.
Before September of 1999, Horst had been very physically active. Besides rollerblading, she bicycled, skiied, hiked and snowboarded. Claimant also tried golfing, waterskiing, rowing, and weightlifting. This often took place with her group of friends and could mean travel outside of New York City.

When claimant returned to work in early 2000, she took an office job. She explained that she could not stand on her feet constantly, which restaurant work required. The latter had been her preferred employment because the hours allowed her to pursue her acting career and she enjoyed the atmosphere. By the time of trial, Horst was employed full-time as a hotel telephone operator, noting that she has some difficulty with receiving and logging in packages.

Horst remained determined to further her acting career and soon after the accident went to an audition for Shakespeare's
Trolius and Cressida on crutches because "I needed an outlet for my creativity and energy." She got the role and played it using her cane in the three performances that were scheduled. Since then, Horst has taken more acting classes and done a few plays and acted in a student film, all unpaid. She has gotten some extra work in commercials and a daytime soap opera, and had a non-speaking extra role in a Jack Nicholson movie, for which she was paid $100. But, claimant contends that she no longer has the vigor or athleticism she once had, and that limits her acting opportunities.
Since the accident, Horst has not engaged in any of the aforementioned sporting activities, except to go hiking twice and do a
"little" weight training. She has done "some" dancing and swimming and, "to a lesser degree," yoga. Claimant testified that she had lost her confidence, feels less comfortable in social situations and does not sleep as well as she once did.
In view of the foregoing, I find that claimant's past pain and suffering amounts to $300,000. Born January 21, 1966, Horst was 38 years old as of the trial in November 2004; according to the actuarial tables, she has a future life expectancy of 42 years.[9]
I find her future pain and suffering to be $300,000. Having found the defendant State of New York 25% responsible for claimant's accident and resulting injuries, claimant is entitled to $150,000 for her pain and suffering.
No claim was advanced for uninsured medical expenses, nor for prescription or over-the-counter medication. Horst seeks lost wages for five months from September 9, 1999, a period of time not contested by defendant. Claimant testified that in the full calendar year prior to her accident, she probably earned less than $20,000,
and described it as between $10,000 and $20,000. Claimant said that at her restaurant job during 1999, she averaged about $300 a week and, in fact, her goal then was to earn about $300, at a time when she would also go on auditions and accept acting jobs. Five months covers approximately 22 weeks; using $300 a week, claimant's lost wages amount to $6,600. As an economic loss, joint and several liability obtains, and accounting for claimant's negligence, she is entitled to $4,950.
Accordingly, the Clerk of the Court is directed to enter judgment for claimant Heidi Horst in the amount of
$154,950. A filing fee paid by claimant may be recovered pursuant to subdivision two of §11-a of the Court of Claims Act.

January 4, 2005
New York, New York

Judge of the Court of Claims

[1] Exh A-1 to the lease between the State and Chelsea Piers (cl exh 8).
[2] The photograph that is claimant's exhibit 2A was taken shortly after September 9, 1999.
[3] Claimant's expert engineer estimated the distance at 100 feet; defendant's expert at 180 feet. Both used the length of each Jersey Barrier - - 20 feet - - as the unit of measurement, but it cannot be determined from the photographs in evidence how many barriers there were on that stretch, and the opening does not appear on any plans. The difference does not become material, and I will use 100 feet.
[4] This lettering is in capitals. Pier 60 is as north as 19th Street (cl exh 26, sheet 25).
[5] In 1999, Braito had a different title, but the same duties as overall manager of the sports and recreational facility.

[6] This was part of the background discussion in the nature of dictum, because such was not central to the case.

[7] See the photograph that is claimant's exhibit 1P. Note the double yellow line at the western edge of the bus stop.

[8] Reported in the July 20, 1999 Engineer's Daily Project Diary, which in relevant part provides: ". . . a pedestrian was noticed acting erratically in the work zone between W15 and W16 St. He said he was hit by vehicle on Rt 9A." (Cl exh 10, p.1). This incident does not relate to the subject openings in the area between 16th and 17th Streets.

[9] PJI: Appendix A, Table 3 (2004 ed). The Table indicates a life expectancy of 42.8 years at the beginning of the 38-39 age interval, and 41.9 years at the beginning of the 39-40 age interval.